On February 27, 2018, the U.S. Supreme Court issued its decision in the case Jennings v. Rodriguez, which posed the question of how long individuals can be detained by Immigration and Customs Enforcement (ICE) during the pendency of removal proceedings until they should be afforded a custody or bond hearing.

The Jennings decision involved the “mandatory detention” provisions of §236(c) of the Immigration and Nationality Act (INA) that were enacted with the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in September of 1996. IIRIRA contained many important changes to the INA such as limiting eligibility for relief from removal and subjecting people convicted of certain criminal offenses to “mandatory detention” upon release from their sentence for the underlying criminal offense. The scope of the “mandatory detention” provisions of §236(c) have been the subject of ongoing litigation, on the questions of whether and when someone can seek release from ICE custody on bond while removal proceedings are pending against them.

Jennings dealt with a challenge to the “mandatory detention” provisions of INA §236(c) brought by the ACLU of Southern California as part of a class action suit. In the case below, the Ninth Circuit had issued an injunction that anyone held under the “mandatory detention” provisions of §236(c) was entitled to a bond hearing after the initial six months of detention by ICE and then periodic bond hearings every six months, if applicable. The Ninth Circuit based the injunction on its statutory interpretation of §236(c), not on constitutional grounds. In Jennings, the Supreme Court reversed the decision by the Ninth Circuit, also on purely statutory grounds, and remanded the case for a decision on the constitutional question of whether and at what point due process requires a bond hearing for those held under “mandatory” ICE custody.

Thus, whether or not constitutional due process allows for someone to be subject to prolonged detention under the mandatory detention provisions of §236(c) without being afforded a bond hearing remains an open question. However, the immediate result of the Supreme Court’s decision in Jennings is that it is likely to become more difficult for individuals to challenge their prolonged detention under the mandatory detention provisions of §236(c) during the pendency of their removal proceedings. In the Second Circuit, where a 2015 decision, Lora v. Shanahan, held that ICE detainees under mandatory detention are entitled to bond hearings after six months based on constitutional due process, such hearings came to a halt after the Jennings decision. On April 5, 2018, the ACLU, New York Civil Liberties Union, and the Brooklyn Defenders Services filed a federal class action suit in Sajous v. Decker, seeking the restoration of bond hearings as a constitutional matter.

Here in the Third Circuit, there is likely to be more litigation on individual habeas petitions brought by ICE detainees in U.S. District Court to challenge their prolonged detention under INA §236(c) as a due process violation. In 2011’s Diop v. ICE/Homeland Security, the Third Circuit issued a decision on a challenge to the “mandatory detention” provisions of §236(c) as part of a habeas petition, holding that as a constitutional matter, due process prohibits “mandatory detention” by ICE after an unreasonable period of time. Unlike the Second and Ninth Circuits, though, the Third Circuit did not employ a “bright line” rule of six months at which detention is automatically unreasonable. Rather, the Diop court held that the point at which detention becomes unreasonable is a “function of the length of detention” and that when detention violates due process is “necessarily a fact-dependent inquiry that will vary depending on individual circumstances.” Still, though different in its holding from Lora, the fate of Diop in the post-Jennings world remains similarly bleak.

As the fight against prolonged detention continues, it is worth noting the broader context of the ever-increasing numbers of people detained by ICE since the passage of IIRIRA in 1996, and even more so in recent months. With the Supreme Court’s decision in Jennings, it is likely that more people in New Jersey and elsewhere in the U.S. will be detained by ICE for longer periods of time. Prior to the Diop decision, for example, it was common for people to be detained by ICE for a year, or in some cases several years, while their cases were pending before the courts. The Jennings opinion will once again force people who have viable applications for relief or meritorious appeals to remain detained for months and years if they want to pursue their claims.